Legal Articles

Do Laws Suffice In A Psychotropic Paradise?

The underlying basis of this article has been inspired by the relevance of this conflicted subject and the recent mass media’s fervent demands to make applicable the provisions of this unsparing law to famous personalities belonging to the Indian Film Industry. The Narcotics Drugs & Psychotropic Substances Act was enacted in India in 1985. The advent of this law saw to the repeal of the Opium Act,1878 and the Dangerous Drugs Act 1930. This law was passed as a consolidated & exhaustive legislation which covered in its ambit a string of offences relating to abuse and misuse of a list of chemical intoxicants. It was and still is considered an omnibus law as it draped within itself, apart from criminalizing production, cultivation, manufacture and sale, it provides for the mode, method and mechanism to identify, inquire investigate, search, seize and prosecute anyone who is suspected to consume, peddle, procure to sell and hoard substances, chemicals and intoxicants- which is a long list of 100 + substances provided in Schedule 2- that are banned by this Act. This Act came into force for two primary reasons- (i) India was a signatory to the only treaty on Narcotics Drugs in 1961 and thus had an implicit obligation to enact a law in furtherance of the objectives under the treaty which it assented to; (ii) The second reason was that India was persuaded by an infuriated United States of America, then led by President Ronald Reagen whose ‘War on Drugs’ battle with infamous Drug Lords such as Pablo Escobar, had embroiled the allies of the U.S.A into being viewed as canvassing a zero tolerance policy against Drugs. This law, in particular, was one of the first legislations, that changed the established dimensions of criminal law principles as they were enunciated in the Indian Penal Code, 1860 and reinforced in the Constitution of India, 1950. As this was a special legislation, the framers of this legislation were of the view that the consumption of drugs was a grave societal menace that had the possibility of destroying the future of the country by targeting a vulnerable & gullible youth and thereby altered fundamental principles of adjudication of a trial under the NDPS Act. The original enactment of the law did not lead to requisite convictions as compared to the number of reported drug trafficking cases, this propelled an amendment which amongst other stringent rules introduced the death penalty for certain offences that were repeated. The raison d’ etre for including the death penalty as a part of this law was also to deter big cultivators, smugglers and peddlers who were impervious to the existence of this law and were unabashed in carrying on their business as usual.

Although it was argued while commissioning this law that it was being done in pursuance of Article 47 contained in Chapter IV of the Constitution and that India needed a terse law as it was being infiltrated by drug cartels of our neighboring States through corridors in Punjab, Rajasthan & Gujarat. Firstly, the burden of proof is reversed1 here the accused has to successfully explain that s/he has non-committed the action for which s/he has been charged with contrary to ordinary law where the prosecution needs to prove the guilt of the accused beyond reasonable doubt. Secondly, this law has a puritanical overtone whereby it confers extraordinary rights on any person working under any force recognized by the Central/ State Government2- police, para-military, BSF, NSG, revenue officials and even it extends the umbrella to include public servants to take notice and cognizance of production, manufacture, cultivation and consumption of prohibited substances under Schedule 2 of the Act and conduct search, seizure, arrest without authorization. Thirdly, it imposes the drastic death sentence3 on repeat offenders for- their attempt to commit/abetment to commit/ conspiracy to commit/commission for facilitating unauthorizedly the ingress to or egress of psychotropic drugs into/from India; the death knell rings again for a person who has been twice accused of aiding habitual drug offenders by extending their protection to harbor them or provide them with asylum. Fourthly, it risks the principle of double jeopardy and does not pass muster the jurisdictional principle by providing for stricter punishments for a person who has previously been convicted for a similar or cognate offence in another jurisdiction4 and not in the Indian jurisdiction for which he is being independently tried for an offence committed in the territory of India. Fifthly, it cloaks agencies that such as revenue intelligence or para-military forces in the powers that are ordinarily exercised by police officials who are in-charge of a Police Station5, in other words for the purpose of discovering offences under this act the Central Government can with each State’s consent vest powers of a Station House Officer of a with otherwise ordinary civil servants heading departments which have little or nary understanding of the day to day functioning of the police unless such departments are specialized forces in investigation of crimes relating to a particular nature. Sixthly, it adulterates the crux of Section 25 of the Evidence Act i.e. any confession made by an accused to a Police Officer cannot be proved in a Court, by providing that any information (including a statement under threatening circumstances or forced confession) given to an officer making an inquiry into allegations levelled against an accused pertaining to any offence under the act is ‘relevant’6 and can be used in Court against the accused.

Another glaring failure of the State has been to not establish Special Courts7 to try offences under this Anti-Drug Law. But if one is to look at the reason of why special courts are not being set up besides the usual banality of existing vacancies and poor infrastructure, it is because special courts may result in more efficacious and holistic prosecution which would mean to even punish those errant servants of the State, be it police officers, forest officials, revenue officials and other state actors who facilitate the effortless functioning of the manufacture, production, trade and travel of these substances. It is would be natural corollary that in cases before a special court, the court would sit not only in judgment of an accusation made but would enforce the due procedure of processual law which would mean the investigating body to mandatorily prepare an itemization of seized goods, the safe- custody of the same and to report the same list of seized substances not just to a senior police officer but equally be accounted for before the Special Court. There is, however a single redeeming feature in this law which slips more onto a reformist approach than the retributive approach on which majority of this law is comfortably couched in, the same being that a person who only consumes any drug may be let off by the Courts with a simple warning accompanying a bond of promised abstinence from substances and good conduct. It is pertinent to note that even the punishment under this provision is maximum imprisonment for a year or a fine, this itself in an tacit acknowledgment of the lawmakers that consumption of any drug is not as grave a crime as the illegal production, manufacture, procurement, transportation and sale of substances which is a more heinous crime against the social fabric of society than mere consumption which can be made attributable to numerable valid causes such as peer pressure, curiosity to experiment, dysfunctional social relations with one’s primary support groups, traumatic disorders, psychological factors and the like.

The law, as developed by Courts, in this sphere has been evolving with great vigor, with a view to balance the scales in each individual case and importantly in cases where elementarily graver questions of this law being just, fair and reasonable arise thereby giving wind to this anachronistic and disproportionate law.

The Courts have been very pointed in criticizing a few constitutionally undogmatic provisions of the NDPS Act and have advocated the view of a reformist approach, but this has only been limited to the contours of the existing framework of the Act in as much as no innovative technique yet has been suggested to the Parliament which would include collaborative efforts of both government agencies and non-government agencies to establish more nuanced ways to integrate de-addiction centers and counselling to undo the spiraling consequences of drug dependency. It is true that the Probation of offenders Act or S. 360 of CrPC is largely (except under S. 39) inapplicable to the NDPS Act but it is my view that Courts need to consider an alternate punishment in the form of reduced sentencing for production, cultivation and sale of drugs and impose a proportionate order (proportional to the market value of the seized contraband) directing social and community service- in the form funding education of children belonging to families under Poverty Line and other innovative ways which make the offender regret his actions so much so that he wouldn’t repeat it (Ex-An serious offender can serve as a sanitation worker and clean drains), which needs to be done by the offender for a period minimum period 5 years.

We, as social animals are driven primarily by self-interest and here in the operative sphere of the NDPS we can achieve a softening on the enforcement of law not just through making convenient amendments but with a robust citizen involvement approach. To just illustrate- the government of the day can propose to give sizeable tax reliefs to institutions/persons, just like to non-governmental organizations, who are running de-addiction centers and community support groups in a credible and transparent manner and providing de- addiction services at a nominal price; This kind of a monetary rebate may induce folks with big pockets to invest in camps of de-addiction, and importantly this may shoot two birds with one arrow. More of such untried approaches need to be explored to soften the blow of this almost merciless law.

  1. Section 35 of Narcotics Drugs & Psychotropic Substances Act, 1985 2. Section 35 of Narcotics Drugs & Psychotropic Substances Act, 1985
  2. Section 35 of Narcotics Drugs & Psychotropic Substances Act, 1985 4. Section 31 of Narcotics Drugs & Psychotropic Substances Act, 1985.
  3. Section 53 of Narcotics Drugs & Psychotropic Substances Act, 1985. 6. Section 53A & Section 67 of Narcotics Drugs & Psychotropic
    Substances Act, 1985. 7. Section 36 of Narcotics Drugs & Psychotropic Substances Act, 1985.

About the author

Neeleshwar Pavani

Leave a Comment